Aucoin v. Aucoin, (1976) 15 N.S.R.(2d) 399 (CA)

• Judge: MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 22, 1976
• Jurisdiction: Nova Scotia
• Citations: (1976), 15 N.S.R.(2d) 399 (CA)

Aucoin v. Aucoin (1976), 15 N.S.R.(2d) 399 (CA);

       14 A.P.R. 399

MLB headnote and full text

Aucoin v. Aucoin

Indexed As: Aucoin v. Aucoin

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.

April 29, 1976.

Summary:

This case arose out of a petition for divorce on the grounds of cruelty. The husband and wife were married for twenty years. During the last ten years of the marriage the relationship deteriorated. In January 19, 1975 after the wife taunted her husband as to his lack of manhood, the husband severely beat the wife. After the beating the husband and wife continued to live and sleep together. The trial court dismissed the petition for divorce. The trial court stated that the physical beating did not constitute cruelty and that in any event the wife condoned the matrimonial offense.

On appeal to the Nova Scotia Court of Appeal the appeal was allowed and the wife was granted a divorce on the grounds of cruelty.

The Nova Scotia Court of Appeal stated that any assault must be viewed in the context of the matrimonial conduct as a whole - see paragraphs 4 and 5. The Nova Scotia Court of Appeal held that the physical cruelty was not condoned by the wife. The Nova Scotia Court of Appeal stated that reconciliation is the test of condonation - see paragraphs 10 to 15.

Family Law - Topic 3651

Divorce - What constitutes cruelty - Physical abuse - A wife taunted her husband as to his lack of manhood and the husband beat the wife severely - The Nova Scotia Court of Appeal stated that any assault must be viewed in the context of the matrimonial conduct as a whole - See paragraphs 4 and 5 - The Nova Scotia Court of Appeal held that the beating, viewed in the context of the poor relationship between the husband and wife, constituted cruelty so as to render intolerable the continued cohabitation of the spouses - See paragraphs 2 to 6 and 16 to 19.

Family Law - Topic 3865

Divorce - Defences, when divorce refused - Condonation - What constitutes condonation - A husband and wife continued to live and sleep together after the husband severely beat the wife - The Nova Scotia Court of Appeal held that the physical cruelty was not condoned by the wife - The Nova Scotia Court of Appeal stated that reconciliation is the test of condonation - See paragraphs 10 to 15.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance award - Periodic payments - A husband earned $780 per month - The Nova Scotia Court of Appeal ordered the husband to pay $250 per month to his former wife for her support - See paragraphs 20 to 29.

Cases Noticed:

Grandy v. Grandy (1972), 7 R.F.L. 69; 3 N.S.R.(2d) 750; 26 D.L.R.(3d) 359, folld. [para. 5].

Horner v. Horner (1974), 13 R.F.L. 110; 5 N.S.R.(2d) 757, folld. [para. 5].

Mackrell v. Mackrell, [1948] 2 All E.R. 858, (C.A.), folld. [para. 11].

Leaderhouse v. Leaderhouse (1972), 4 R.F.L. 174, folld. [para. 14].

Allan v. Allan (1972), 7 R.F.L. 96 (B.C.C.A.), folld. [para. 14].

Getson v. Getson (1971), 2 N.S.R.(2d) 65; 2 R.F.L. 91, refd to. [para. 18].

Statutes Noticed:

Divorce Act R.S.C. 1970, c. D-8, sect. 3(d), sect. 9(1)(c) [para. 7].

Counsel:

W.R.E. Goodfellow, for the appellant;

T.P. Sodero and Vincent F. Lambie, for the respondent.

This appeal was heard by the Nova Scotia Court of Appeal at Halifax, Nova Scotia on March 22, 1976. Judgment was delivered by the Nova Scotia Court of Appeal on April 29, 1976.

The judgment of the Nova Scotia Court of Appeal was delivered by MACKEIGAN, C.J.N.S.